Mary Louise Charlotte Backstrom v Martin Carl Simon Wennberg
[2023] EWFC 79
Financial Remedies; treatment of post-nuptial agreement, Re
5 July 2024
[2024] EWFC 328 (B)
Family Court
A couple's post-marriage agreement was challenged after their divorce. The judge said the agreement was valid but didn't fairly consider the wife's needs after they had a child. The wife received a large sum of money and a share of the husband's pension to ensure a fair outcome.
Key Facts
- •Financial remedies case following a 9-year marriage.
- •Parties: 65-year-old husband (H) and 41-year-old wife (W).
- •One 10-year-old child (A) and a 19-year-old stepchild (B) living with them.
- •Post-nuptial agreement (PNA) signed 4 days after marriage.
- •H has significant assets (£1.6m+), W has minimal assets.
- •W was a litigant in person at the final hearing.
- •Disputes over the binding nature and fairness of the PNA.
- •Open offers exchanged between the parties.
Legal Principles
Post-nuptial agreements are treated similarly to pre-nuptial agreements.
Radmacher v Granatino [2010] UKSC 42; WC v HC [2022] EWFC 22
For a nuptial agreement to carry full weight, each party must have material information and intend the agreement to govern financial consequences of separation.
Radmacher v Granatino [2010] UKSC 42
Vitiating factors (duress, fraud, misrepresentation) invalidate agreements; undue pressure significantly reduces weight.
Radmacher v Granatino [2010] UKSC 42
Court upholds freely entered agreements unless unfair in prevailing circumstances.
Radmacher v Granatino [2010] UKSC 42
Unfairness assessed considering whether the agreement leaves the applicant in a predicament of real need, moving the lifestyle to just to the right of the left-hand bookend (Cummings v Fawn analogy)
Cummings v Fawn, Mostyn J [2023] EWHC 830
Even with an effective agreement, the court considers s.25 factors of the Matrimonial Causes Act 1973.
Brack v Brack [2018] EWCA Civ 2862
Court retains latitude in assessing needs, even with a needs-based approach.
KA v MA 2018 EWHC499 (fam)
Outcomes
The PNA was found to be valid but unfair in its current application.
While W felt pressure to sign, it wasn't undue pressure. However, the birth of a child and the passage of time rendered the agreement's provisions inadequate to meet W’s needs, particularly concerning maintenance and housing after 5 years of marriage.
A needs-based approach was adopted, taking the PNA into account.
The court considered s.25 factors, including the significant disparity in income and resources between the parties, W’s role as primary carer, and H’s substantial income increase during the marriage. The court deemed that the current income, as provided by the PNA, was unfair and an order was made for capitalised maintenance and a PSO.
W was awarded £489,000 lump sum (£417,000 capital + £72,000 capitalised maintenance) within 30 days.
This covered housing, education costs, and debts. The amount aimed to meet her reasonable needs without replicating pre-separation lifestyle.
A 7.4% PSO of H's SIPP was ordered.
This aimed to provide equality of income in retirement, as recommended by an expert report.